Dillard - Memo in Spt of Motion for PI

8/7/2019 Dillard - Memo in Spt of Motion for PI

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UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

UNITED STATES OF AMERICA, :

:Plaintiff, :

: CIVIL ACTION

v. : No. 11-1098-SAC-KGS

:

ANGEL DILLARD, :

:

Defendant. :

MEMORANDUM OF LAW IN SUPPORT OF THE MOTION OF THE

UNITED STATES OF AMERICAFOR PRELIMINARY INJUNCTIVE RELIEF

In an effort to intimidate Dr. Mila Means to not provide abortion services in Wichita, Kansas,

the defendant, Angel Dillard, sent Dr. Means a letter which threatened to prevent her from

performing abortions by any means necessary. The letter contained other threats and made

references to Dr. George Tiller. Dr. Tiller was murdered in Wichita less than two years ago because

of his abortion medical practice.

The United States of America (the United States) has moved the Court for an Order

preliminarily enjoining Defendant, Angel Dillard, from contacting Dr. Mila Means via letter, email,

phone call, or any other form of communication; preliminarily enjoining Defendant and her

representatives, agents, employees and any others acting in concert or participation with her, from

coming within 250 feet of Dr. Means, her home, car, and place of business; and preliminarily

enjoining Defendant and her representatives, agents, employees and any others acting in concert or

participation with her, from violating the Freedom of Access to Clinic Entrances Act.


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I. RELEVANT BACKGROUND AND STATEMENT OF FACTS

On May 31, 2009, reproductive healthcare provider Dr. George Tiller was shot in his church

and killed by anti-abortionist Scott Roeder. See Declaration of Dr. Mila Means (Means Decl.),

attached as Exhibit 1, 4. Scott Roeder was convicted of first-degree murder and sentenced to life

without parole. Id. 5. Defendant, Angel Dillard, who is active in the anti-abortion community, has

corresponded with Scott Roeder during his incarceration. Id. 9.

Since Dr. Tillers murder, no physician has openly performed abortions in Wichita. Id. 6.

Dr. Mila Means is a family practitioner in Wichita who is training to provide abortion services to

women in Wichita. Id. 1-2.

On or about January 15, 2011, Defendant mailed a letter to Dr. Means in an attempt to

intimidate her and prevent her from performing abortions in Wichita. Defendants letter contains

several statements that independently and taken together constitute a threat, including:

I urge you to think very carefully about the choices you are making. . . . We will not let this

abomination continue without doing everything we can to stop it.

Maybe you dont realize the consequences of killing the innocent. If Tiller could speak fromhell, he would tell you what a soulless existence you are purposefully considering, all in the

name of greed.

Thousands of people are already looking into your background, not just in Wichita, but from

all over the US. They will know your habits and routines. They will know where you shop,

who your friends are, what you drive, where you live. You will be checking under your car

everyday-because maybe today is the day someone places an explosive under it.

Defendant signed the letter Angel Dillard, and sent the letter in an envelope with a pre-printed

return address sticker with Defendants name and address. See Letter from Angel Dillard to Dr.

Mila Means (Dillard Letter), attached as Exhibit 2.

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Defendants letter intimidated Dr. Means and caused her to undertake numerous security

measures. Among those measures were the following: having her car examined by a mechanic;

parking only where her car is visible to her; installing a home alarm; staying overnight at

different locations; varying her route to and from work and home; filing police reports; requiring

new patients to provide ID; and looking for a more secure building in which to practice. Means

Decl. 10-11.

Defendants conduct intimidated Dr. Means, and Defendant engaged in this conduct with

the intent to intimidate. Defendant has publicly committed to preventing the delivery of abortion

services in Wichita, Whats the Matter with Kansas? (Ow Myeye Productions Inc. 2010);

publicly acknowledges her relationship with Scott Roeder, Suspect in Abortion Doctor George

Tiller Slaying Says Such Killings Justifiable, July 4, 2009,

http://www.myfoxdetroit.com/dpp/news/national/Suspect_in_Abortion_Doctor_George_Tiller_S

laying_Says_Such_Killings_Justifiable_29261227; and poses a risk of continued threats to Dr.

Means in order to intimidate her. Therefore, Defendant should be enjoined from violating

FACE.

II. LEGAL DISCUSSION

A. Standard for Preliminary Injunction

Defendants letter constitutes a threat of force in order to intimidate Dr. Means from

providing reproductive health services. The United States has the authority and indeed the duty

to commence this action seeking preliminary and permanent injunctive relief. See 18 U.S.C.

248(c)(2)(B).

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http://www.myfoxdetroit.com/dpp/news/national/Suspecthttp://www.myfoxdetroit.com/dpp/news/national/Suspect


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It is well-settled that a party is entitled to preliminary injunctive relief if the party

demonstrates:

1. a likelihood of success on the merits;

2. a likelihood of irreparable harm to the movant in the absence of

preliminary relief;

3. that the balance of the equities tips in the movants favor; and

4. that granting the relief is in the public interest.

Attorney General of Oklahoma v. Tyson Foods, Inc., 565 F.3d 769, 776 (10th Cir. 2009).

B. The United States has satisfied the standards for preliminary injunctiverelief

1. The United States has a substantial likelihood of success on the merits.

Defendants conduct clearly constitutes a violation of FACE, which makes illegal, among

other things, threats of force designed to intimidate any person from providing reproductive health

services. 18 U.S.C. 248(a)(1). A threat of force, or true threat, is a declaration of intention,

purpose, design, goal or determination to inflict punishment, loss, or pain on another, or to injure

another or his property by the commission of some unlawful act. Nielander v. Bd. of County

Commissioners, 582 F.3d 1155, 1167 (10th Cir. 2009) (quoting United States v. Viefhaus, 168 F.3d

392, 395 (10th Cir. 1999)). A true threat does not require the speaker to actually intend to carry out

the threat, nor does it require the maker of the threat to have the apparent ability to carry out the

threat. Viefhaus, 168 F.3d at 39596. The inquiry focuses on whether a recipient would reasonably

consider that an actual threat has been made. Id. That objective inquiry is a fact-intensive one,including a consideration of the language itself, the context in which the statement is made, and any

actions the recipient takes in response to the threat. United States v. Magleby, 241 F.3d 1306 (10th

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Cir. 2001) (the district court properly instructed the jury that it could consider the familys reactions,

including the mothers refusal to sit on their front porch, the fathers installation of a number of

security measures, a discussion on moving to a new home, and the sons insistence on carrying a

baseball bat with him at all times, when deciding whether the defendant intended to threaten).

This interpretation of the meaning of the term threat is consistent with the legislative

history of FACE. Congress intended that a statement constitutes a threat when Aa reasonable person

would foresee that the statement would be interpreted by those to whom the maker communicates

it as a serious expression of an intention to inflict bodily harm.@ S. Rep. No. 117, 103d Cong., 1st

Sess. 22-23 (1993); see also Planned Parenthood of Columbia/Willamette, Inc. v. American

Coalition of Life Activists, 290 F.3d 1058, 1075 (9th Cir. 2002). In American Coalition of Life

Activists, the Court explained that it is not necessary that a defendant intend to or be able to carry

out the threat, because the only intent requirement is that Athe defendant intentionally or knowingly

communicate the threat.@ 290 F.3d at 1075. It is the making ofAthe threat with intent to intimidate@

that makes a defendant=s conduct unlawful under FACE. Id. at 1077.

Defendant Dillards letter constitutes a threat of force. First, the language itself is

threatening. Defendant references Dr. Tiller, who was murdered because he provided abortions. See

Dillard Letter. She warns that an explosive device may be placed under Dr. Means car. Id. She

further declares that, if Dr. Means does continue her plan to provide abortions, [w]e will not let this

abomination continue without doing everything we can to stop it. Id. Significantly, Defendant

specifically involved herself in the statement of intent to take action against Dr. Means through the

use of the word we. Id.

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Second, the context of the letter further leads to the conclusion that it is a true threat. Dr.

Tiller was the last physician to openly perform abortions in Wichita and was murdered less than two

years ago. See Means Decl. 4, 6. Protestors have targeted Dr. Means place of business,

employees, and her home, and she has been the subject of flyers and emails urging those in the anti-

abortion community to take action against her. See Means Decl. 3. Viewing Defendants letter

in the context of an historically explosive environment in Wichita surrounding abortion providers,

it can only be interpreted as conveying a threat against Dr. Means life.

Finally, Dr. Means has taken actions in response to receiving Defendants letter, including

having her car examined by a mechanic; parking only where her car is visible to her; installing a

home alarm; staying overnight at different locations; varying her route to and from work and home;

filing police reports; requiring new patients to provide ID; and looking for a more secure building

in which to practice. See Means Decl. 11. These actions indicate that Dr. Means reasonably

believed that Defendants letter was meant as a threat.

Defendants actions were intended to intimidate Dr. Means from providing reproductive

health services -- the precise conduct that FACE is intended to prohibit. Defendant=s letter is plainly

a threat proscribed by FACE. 18 U.S.C. ' 248(a)(1). Such threats are not protected by the First

Amendment. American Coalition of Life Advocates, 290 F.3d at 1076; see also Schenck v. Pro-

Choice Network of Western New York, 519 U.S. 357, 373 (1997); Madsen v. Women=s Health

Center, 512 U.S. 753, 774 (1994).

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2. Dr. Means has been, and will continue to be, irreparably harmed by

Defendants FACE violations unless the Court issues a preliminary

injunction.

Irreparable harm is present where a plaintiff demonstrates a significant risk that he or she

will experience harm that cannot be compensated after the fact by monetary damages. RoDa

Drilling Co. v. Siegal, 552 F.3d 1203, 1210 (10th Cir. 2009) (internal quotation and citation

omitted). In making this determination, a court should assess whether such harm is likely to occur

before the district court rules on the merits. Id.

Defendant=s clearly stated motive is to intimidate Dr. Means from providing reproductive

health services, and in so doing she has placed Dr. Means in reasonable apprehension of bodily

injury. So long as Defendant is free to communicate additional threats to Dr. Means, Dr. Means will

continue to be harmed. Without a preliminary injunction, Dr. Means will be deprived of the

opportunity to exercise her lawful right to provide reproductive health services free of fear for her

personal safety. Defendants threats also have the potential to intimidate other clinic physicians,

staff, and patients who may be aware of the threats.

The threat of additional intimidation by Defendant is substantial, given Defendants prior

course of conduct and stated intentions. There is, therefore, clearly a likelihood of irreparable

injury should this Court not issue an injunction.

3. The balance of the equities weighs strongly in favor of granting the

preliminary injunction; granting injunctive relief will not result in any

harm to Defendant.

Defendant will not be injured in any manner if this Court issues a preliminary injunction.

FACE prohibits only a very limited range of activities, namely, force, threat of force and physical

obstruction. Planned Parenthood Association of Southeastern Pennsylvania, Inc. v. Walton, 949 F.

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Supp. 290, 292 (E.D. Pa. 1996). A preliminary injunction will not prohibit Defendant from

expressing her anti-abortion message, but for the exception of communicating directly with Dr.

Means, a right she forfeited with her threatening conduct.

4. Injunctive relief against Defendant is in the public interest.

Reproductive health services are protected by the Constitution and laws of the United States

and the public will best be served by the granting of a preliminary injunction in the instant matter.

A significant government interest lies in allowing unfettered access to health care facilities. See

Madsen v. Womens Health Center, 512 U.S. 753, 767-68 (1994); see also Independent Living

Center of Southern California, Inc. v. Maxwell-Jolly, 572 F.3d 644, 659 (9th Cir. 2009) (finding

district court did not abuse discretion in giving strong weight, as part of preliminary injunction

analysis, to the public interest in ensuring access to health care). Because Dr. Means seeks to open

a health care facility, and will continue to be intimidated and made fearful of doing so if this Court

does not issue a preliminary injunction, the requested preliminary injunction is plainly in the public

interest.

II. CONCLUSION

For the foregoing reasons, this Court should issue a preliminary injunction prohibiting

Defendant, Angel Dillard, from contacting Dr. Mila Means via letter, email, phone call, or any other

form of communication; enjoining Defendant and her representatives, agents, employees and any

others acting in concert or participation with her, from coming within 250 feet of Dr. Means, her

home, car, and place of business; and enjoining Defendant and her representatives, agents,

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employees and any others acting in concert or participation with her, from violating the Freedom of

Access to Clinic Entrances Act.

Respectfully submitted,

BARRY R. GRISSOM THOMAS E. PEREZ

United States Attorney Assistant Attorney General

District of Kansas Civil Rights Division

JONATHAN SMITH

Chief

Special Litigation Section

s/Julie K. Abbate

JULIE K. ABBATE

Deputy Chief

Special Litigation Section

s/Barry R. Grissom s/Aaron Fleisher

BARRY R. GRISSOM AARON FLEISHER

United States Attorney Trial Attorney

For the District of Kansas United States Department of Justice

500 State Ave., Suite 360 Civil Rights Division

Kansas City, KS 66101 Special Litigation SectionKansas Bar No. 10866 950 Pennsylvania Ave., N.W.

(316) 269-6481 Washington, DC 20530

(316) 269-6484 (fax) (202) 514-6255

(202) 514-6903 (fax)

[email protected]

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Dillard - Memo in Spt of Motion for PI